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Summary

Lambda Legal filed an amicus brief before the U.S. Court of Appeals for the Ninth Circuit in SmithKline Beecham (SKB) v. Abbott Laboratories arguing that the heightened scrutiny standard that the Supreme Court applied in its 1986 ruling in Batson v. Kentucky, holding that the Equal Protection Clause of the U.S. Constitution precludes using peremptory challenges to strike prospective jurors because of their race, should be applied to sexual orientation. Batson had already been extended to apply to sex, and the Lambda Legal brief argued that the same level of review that resulted in sex and race being classified as suspect classes also applies to sexual orientation. SKB v. Abbott Laboratories is an antitrust, contracts and business tort case SKB filed against Abbott after Abbott quadrupled the cost of its protease inhibitor (PI) booster drug, Norvir. Abbott had marketed Norvir as a PI booster to SKB and other manufacturers of HIV medications, which allowed people with HIV to take smaller doses of PIs and thereby reduce the negative side effects. During jury selection for the trial, counsel for Abbott used his first peremptory challenge to strike a prospective juror because he is a gay man. Counsel for SKB objected and asserted that the U.S. Supreme Court’s 1986 ruling in Batson precluded using peremptory challenges to strike jurors based solely on their sexual orientation. The judge questioned whether Batson applied to sexual orientation and over-ruled the objection. SKB appealed that ruling to the Ninth Circuit.

History

March 2012: Lambda Legal files amicus brief with the U.S. Court of Appeals for the Ninth Circuit in SKB v. Abbott Laboratories, urging the Court to apply heightened scrutiny to classifications based upon sexual orientation and to find that the equal protection clause of the U.S. Constitution precludes using peremptory challenges to strike potential jurors because of their sexual orientation.

January 21, 2014: Ninth Circuit issues order remanding case back to U.S. District Court, finds that classifications based upon sexual orientation must be subjected to heightened scrutiny, and determines that using peremptory challenges to strike potential jurors because of their sexual orientation violates the equal protection clause of the U.S. Constitution as applied by the U.S. Supreme Court 1986 ruling in Batson v. Kentucky.

(Los Angeles, January 21, 2014) – The U.S. Ninth Circuit Court of Appeals today overturned a lower court ruling because the trial judge erred in allowing one litigant to use a peremptory challenge (a challenge to a juror not based on demonstrated cause) to remove a juror because of the juror’s sexual orientation.
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